Petition for Writ of Certiorari — In Re David Kevin Lewis, Petitioner

Supreme Court briefAug 26, 2022

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IN THE SUPREME COURT OF THE UNITED STATES

filed

AUG 2 6 2022

In re DAVID KEVIN' LEWIS "

Petitioner f

UNITED STATES OF AMERICA,

Respondent 5

ON APPEAL FROM THE UNITED STATES FIFTH CIR-

PETITION FOR WRIT OF MANDAMUS

DAVID KEVIN LEWIS

F.C.I. El Reno

PO Box 1500

El Reno, OK. 73036

Inmate #34305-077

received

AUG 2 6 2022

OFFICE OF THE CLERK

SiBREME 0008**1*.

QUESTION

Is the Law of the .United States for Statute of li

mitations a matter of jurisdiction and by Lewis raising

the issue in trial as well as filing the trial motion for

acquittal meet the affirmative defense standard?

j,»

«r

1 3*

TABLE OF CONTENTS

QUESTION

TABLE OF CONTENTS

TABLE,OF AUTHORITIES

iii.iv

OPINIONS OF LOWER COURTS

v.vi,vii

STATEMENT OF JURISDICTION

PARTIES JUDGMENT UNDER REVIEW

STATEMENT OF CASE

}

...............................

STATEMENT OF EXCEPtlONAL'C'IRCUMSTANCF .(

SUMMARY OF ARGUMENT

............................. 1

CONSTITUTIONAL PROVISION RELIED UPON

STATUTORY PROVISION RELIED UPON

2,3

.........~t—

5,6

ARGUMENT

6 thru 11

REASON WHY PETITION SHOULD BE GRANTED

11 thru 17

CONCLUSION

AFFIDAVIT

CERTIFICATE OF SERVICE

EXHIBIT A

attached

EXHIBIT F

attached

iii

TABLE OF AUTHORITIES

Cases:

Pages:

Boag v. McDougall, 1998

............ .-...............................

Caldwell v. Alabama Dry Dock & Shipbuilding Co., 161

161 F.2d 83 (5th Cir. 1947) .................................................

DEVINE v. INDIAN RIVER COUNTY SCHOOL RD., 11th Cir. 1997.16

Green v. Branson.i 1997

Haines v. Kerner, 1972

In re Incident aboard D/B Ocean King, 877 F.2d 322 (1989)14

Johansen v. E.I. Du Pont de Nemours & Co.,

627 F. Supp. 968 (5th Cir. 1987)

......................

Kokkenen v. Gaurdians Life Ins. Co. of America,

511 U.S. 375 (1994)

............................................

• 11.12

Ky. v. Stincer > 482 U.S. 730 (1987)

Marbury

M^dj-son. 1 Cranch 147 (1803)

• 8

• m

. 11

Md. v. Craig, 497 U.S. 845 (1990)

New York v. FCC, 486 U.S. 57 (1988)

Spencer v. Doe, 1998

............

Sullivan v. La., 508 U.S. 275 (1993)

Toussie v. United States, 397 U.S. 112, (1970)6,10,12,13,16

While v. Toledo > St. L&K.C.R. Co., 79 F. 133 (2d Cir.1897)9

William v. Berry > 8 HOW. 945, 940,12:.L.vEd..ll70yll89( 1850)13

Winship, 397 U.S. at 363

......................

Woodbury v. Andrew Jergens Co., 61 F.2d 736 > 16 U.S.P.Q

(BNA) 120 (2d Cir. 1932)

......................

United States v. Arky, 938 F.2d 579 (1991)

iv,7

United States v. Cook, 84 U.S. 168 (1872)

v,7

United States v. Davis, 583 F.2d 190 (5th Cir.1978)... 8,15

United States v. Gentile, 235 F.Supp. 3d 649

(D.N.J. 2017)

....................................................... .

United States v. Jones

}

9,12

174 F.2d 746 (7th Cir. 1949) ... 13*

United States v. Lewis, 774 F.3d 837 (5th Cir. 2014)

United States v. McCall, 553 F.3d 821 (5th Cir. 2008)... 13

United States v. National City Bank, 83..F. 2d , 236

(2d Cir. 1936) ...........................................................................

i •

United States v. Solomon ) 29 F.3d 961, 964 (5th Cir.l994)vi

United States v. Ubl, 472 F.Supp. 1236 (N.D.Ohio 1979) 9,15

STATUTES:

15 U.S.C. 77q(a) and 77x

18 U.S.C. 3301

........

4,5,12,13

18 U.S.C. 371

18 U.S.C 2

28 U.S.C 2071

28 U.S.C. 2072

28 U.S.C. 1651(a)

28 U.S.C. 2255

2,3

RULES:

Supreme Court rule 3(a)

Fed.R.Crim.P. 29(c)(1)

8,13,15

Fifth Circuit Rule 41.2

10,11,13

CONSTITUTIONAL PROVISIONS:

U.S. Const, art. Ill, sec.2, cl. 2

U.S. Const, art. VI f cl.2

U.S. Const, art. VI cl.12

OPINION OF UNITED STATES DISTRICT

COURT

Enclosed by attachment are a copy of the opinion of

the District Court due to complexity and extensive "limitat

ions" judgment by the court. See attached EXHIBIT F.

OPINION OF THE FIFTH CIRCUIT COURT

C. Statute of Limitations

Lewis argues that 18 U.S.C. § 3301', which extended

the applicable statute of limitations from five years to six,

is a violation of the Constitution's prohibition of ex post

facto laws. U.S. Const, art I, § 9, cl. 3. He also indirect

ly argues that the statute'e extension of the applicable sta

tute-of 1imitations should not be applied retroactively because it lacks an explicit retroactivity provision. We do not

address these arguments because we hold that lewis waived his

affirmative statute of limitations defense by not "asserting

[it] at trial." United States v. Arky, 938 F.2d 579, 581 (5th

Cir. 1991) .

Lewis raised his statute of limitations defense for the

first time in his post-conviction motion for acquittal. Al

though we have clearly held that a defendant waives his sta

tute of limitations defense if he raises it for the first time

on appeal, id., we have not squarely addresses whether a sta

tute of limitations defense can be asserted for the first time

in a pos't-conviction motion for judgment of acquittal. However,

we have previously determined that a statute of limitations

defense is an affirmative defense that must be "affirmative

assert[ed].. .at trial to preserve it for appeal." ^Id. at

582 (emphasis added). This is because defenses such as a sta

tute of limitations defense will, in many cases, turn on dis

puted factual issues. If defendants were allowed to raise a

limitations defense after a conviction, the prosecution would

be prevented from introducing evidence to rebut the defense.

Cf. United States v. Cook, 84 U.S. 168

179-80 (1872)(ex-

plaining that the rationale for requiring the statute of li

mitations defense to be raised at trial is to allow the prose

cutor to present evidence in order to rebut the defense). By

requiring a defendant to "raise and develope" his statute of

limitations dfifpnsp at- t*ri a 1*3 » Uni frpH States V

3d 961, 964 (5th Cir. 1994)(citing Arky

SoJUxmo-n-

29 F, •

938 F.-3d at 581-82) ,

the prosecution will have a chance to rebut the defendant's

arguments with evidence of its own. Although facts surround

ing Lewis

statute of limitations defense are not in dispute,

this does not change our conclusion that a rule requiring all

defendant's to "affirmatively assert a- limitations defense at

trial to preserve it for appeal." Arky, 938 F.3d at 582

preferable to a case-by-case determination. Such a case-bycase determination would leave defendants without clear rule

as to when a statute of limitations defense must be raised.

III.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court”'“s 'judgments

vii

OIPINION OF FIFTH CIRCUIT COURT

TO RECALL MANDATE

Before King, Dennis, and Clement, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellant's motion to recall this

Court's mandate is DENIED.

'« »

STATEMENT OF JURISDICTION

Jurisdiction in this Court is brought under artic

le III Sec. 2 Cl. 2 of the U.S. Constitution construed

with recall of the mandate in the Fifth Circuit Court de

nied on 6/23/22. Such appellate jurisdiction for extraor

dinary writ is hereby brought in accordance with Federal

Rules of the Supreme Court Rule 3(a) and 28 U.S.C. 1651

(a) .

PARTIES JUDGMENT UNDER REVIEW

Judge Sidney A. Fitzwater of the Northern District

of Texas Dallas Division ',s Judgment regarding motion for. ♦

acquittal and new trial. Judges King, Dennisand Clement

of the Fifth.. Circuit Court who affirmed the Judgment of

the District Court are under review- in regards to the

Statute of Limitations issue.

STATEMENT OF CASE

David Kevin Lewis who was indicted 6/5/12 in the

U.S.D.C. Northern District of Texas Dallas Division proc

eeded to trial in pursuance with multiple counts of secu

rities fraud ranging from 18 U.S.C. 371 (15 U.S.C. 77q(a)

and 77x) Conspiracy to Commit Securities Fraud and 23 ot

her counts of 15 U.S.C. 77q(a) and 77x and 18 U.S.C. 2

Securities Fraud and Aiding and Abetting. On 9/4/13 Lewis

was found guilty as to all counts.

On 10/2/13 Lewis filed a timely motion for acquit

tal and motion for new trial due to extension to file su

ch 9/13/13. Such was denied by the court on both accounts

of acquittal and new trial.

On 1/24/14 Lewis was sentenced to 360 mon ths im

prisonment. On 1/27/14 Lewis filed

a timely notice of

appeal. On 12/8/14 the Fifth Circuit Court of Appeals fi

led and published its opinion

affirming the District

Court's judgment. A revised published opinion was filed

12/30/14, which issued its mandate in such matter.

On 3/22/16 Lewis filed an untimely motion under 28

U.S.C. 2255 on grounds that counsel was ineffective for

failing to preserve the statute of limitations defense in

the District Court. On 5/30/17 the District Court dis

missed Lewis's 2255 motion as time-barred by AEDPA's sta

tute of Limitations, and dismissed [him] with prejudice.

On 7/7/17 ,'Lejrfis ^iled a Certificate o$? Appealability

(COA) which was denied 5/1/18.

Lewis filed a Motion to Recall the Mandate on 6/22/22

to the Fifth Circuit Court of Appeals. Such motion to recall

the mandate was denied 56/23/22.

STATEMENT OF EXCEPTIONAL CIRCUMSTANCE

Lewis who has filed a "motion to recall the mandate"

in the Fifth Circuit Court construed with Fifth Circuit Rule

41.2 was denied by blanket response which denied explanation

of its reasoning.' to accept the recall of mandated Wo.tli the

United ;'Sltate^r'Court of Appeals for the /Fiftti~~Clrcuit being

of appellate jurisdiction to the United States District /*■ ;

Court, no other Court but this ^Justice,Court can Compel the

Fifth Circuit Court to recall the mandate. Thus authoriza

tion under 28 U.S.C. 1651(a) is necessary and asserted in

this Court agreeable to the useages and principles of law.

So as to recall the mandate to prevent injustice which is

the sole purpose of Fifth Circuit /Rule 41.2.

Thereby exceptional circumstances warrants the exer

cise of this Court's discretionary powers which cannot be

fobtained in any other form' of any other Courtr~d~ue'~'to"exhaus

ting appeals and writ of habeas corpus remedies.

SUMMARY OF AR GUMENT

Lewis brings into question whether subject-matter

jurisdiction was properly attained by the District Court.

Further upon raising the issue of statute of limitations

construed with a law of the United States which is not

construed to apply retroactively in accordance with U.S.C.

§ 3301 not stating in the wording that continuance was to

be applied. If a timely motion for acquittal was filed in

regards to statute of limitations it is a matter of juris

diction which is a substantive right that cannot be abri

dged. Thus recall of the mandats is applicable so as to

prevent injustice in accordance with the Fifth Circuit

Rules.

»■

CONSTITUTIONAL PROVISION:RELIED UPON

ARTICLE 6 CLAUSE 2:

This Constitution.,. and ti e Laws of the United Sta

tes which shall be made in Pursuance thereof; and all

Treaties made

or which shall be made, under the Authori

ty of the United States, shall be the Supreme Law of the

Land; and the Judges in every Stjate shall be bound there

by, any Thing in the Constitution or Laws of.any State to

the Contrary Notwithstanding.

STATUTORY PROVISION RELIED UPON

18 U.S.C. § 1301i

(a) Definition. In this section, the term "securities fr•

% >

•

aud offense" means a violation c f, or a conspiracy or an

attempt to violate(1) Section 1348 [18 USCS 1348];

(2) Section 32(a) of the Securities Exchange Act of

1934 (15 U.S.C. 78ff(a));

(3) Section 24 of the Securities Act of 1933 (15

U.S.C. 77x);

(4)Section 217 of the Investment Advisors Act of

1940 (15 U.S.C. 80b-17);

(5) Section 49 of the Investment Company Act of

1940 (15 U.S.C. 80a-48); or

(6)Section 325 of the Trust Indenture Act (15 U.S.C.

77yyx).

'(b) Limitation. No person shall be prosecuted, tried, or

punished for a securities fraud offense, unless the indi--ctment is found or the information is instituted within 6

years after the commission _of the offense.

ARGUMENT

This Court has long held the position that the sta

tute of limitations is a issue that upon exhausting such

time limit that Congress in its new statute must have in

tended to extend the limitation of the prior statute. See

Toussie v. United States, 397 U.S. 112, 115, 90 S.CT. 858,

25 L.Ed. 2d 156 (1970)(With respect to deciding when a cri

minal statute of limitations begins to run as to a particu

lar o*ffense, the principles that Such* Statutes of limita

tions are to be liberally interpreted in favor of repose

and that they normally begin to run when the crime is com

plete, indicate that the‘:doctrir.e .of continuing offenses

is only to be applied in limitec circumstances, since the

tension between the purpose of s. statute of limitations

and the continuing offense doctrine is apparent, the lat

ter, for all practical purpose, extending the statute be

yond its stated term; these considerations do not mean

that a particular offense should be construed as a contin

uing one

but do require that such a result should not be

reached unless the explicit language of the substantive

criminal statute compels such conclusion, or the nature of

the crime involved is such that Congress must assuredly

have intended that it be treated as a continuing one).

Lewis raised the issue ir trial regarding the sta

tute of limitations. See EXHIBIT} A, Vol.2, Page 4, Line

12 to Page 5, Line 7. See United States v. Arky

938 F.

2d 579 (l991)(a defendant must a f firmatively assert a:: lim

itations defense at trial to preserve it for appeal). Upon

Lewis filing a motion for acquittal in regards to the Sta

tute of Limitations the District Court disclosed in its denial that Lewis waived his right to the affirmative defense

by not raising the issue at tria 1. The Fifth Circuit choosing not to address the issue ci ted United States v. Arky,

938 F.2d 579, 581 (5th Cir. 199] ). The Circuit Court pur% >

ports that the government would need to be able to respond

to the affirmative defense of time limitation. See United

States v. Cook

84 U.S. 168, 179-80 (1872)(explaining that

the rationale for requiring the statute of limitations de

fense to be raised at trial is to allow the prosecutor to

present evidence in order to retut the defense).. The record

reflects not only did the goverrment have such a chance but

it raised the issue to begin witjh. See EXHIBIT A, Vol. lb

Page 57, Line 21 to Page 58

Lire 5. Thereby in accordance

with the Confrontation Clause tie witness in cross examina

tion was asked questions in regard to the Statute of Limi

tations. See EXHIBIT A, Vol. 2, Page 4, Line 12 to Page 5,

Line 7; See Md. v. Craig, 497 U S. 845 (1990); See also,

Ky. v. Stincer, 482 U.S. 730

7: 7 (1987)(confrontation

right designed to promote truth- finding function of trial).

Not only are the standards of Arky and Cook met in

the trial proceeding but the right to file for an acquit

tal as far as 14 days after tri^l. See Fed. R. Crim. Pro.

R. 29(c)(1); see also

United States v. Davis, 583 F.2d

190 (5th Cir. 1978)(0ne of salutary purposes of motion for

judgment of acquittal is to give court oppurtunity to cor

rect error immediately). Due to the Confrontation Clause

already being implemented the "kinship""beyond-a-reasonable-doubt" standard applies. See Sullivan v. La,, 508 U.S.,

275, 278 (1993). The standard protects three interests.

First, it protects the defendant 's liberty interest. See

Winship, 397 U.S. at 363. .Second, it protects the defend

ant from stigma of conviction,

d. Third, it encourages

community confidence in criminal law by giving "concrete

substance" to the presumption ol innocence. Id.. However

the government's failure to provide the sufficient evid

ence necessary to close the door on statute of limitations

provides necessity to correct sqch error of affirmative de

fense. See Unitdcl.iSiiat'^s v. Ubl

472 F. Supp. 1236 (N.D.

Ohio 1979) (Rule 29(a) performs ^ital function in criminal

case of protecting defendants from conviction on basis of

inadequate evidence).

More importantly Fed.R.Crim.P,R. 29(c)(1) is consti-

tutional due to the rules of cri minal procedure being put

in pla ce by the Supreme Court. See 28 U.S.C. 2072; White

V. Toledo, St. L & K. C.R. Co., 79 F. 133 (2d Cir. 1897)

(Predecessor to 28 USCS 2072 was constitutional). Lewis

following the rules of criminal procedure cannot be abridged, enlarged or modified by the District Court in regards

to statute of limitations issue being brought forth by

motion for acquittal. See Woodbu ryv. Andrew Jergens Co.,

61 F.2d 736

nied

16 U.S.P. Q(BNA) 12 0 (2d Cir. 1932), cert de-

289 U.S. 740, 53 S.Ct. 659 , 77 L.Ed. 1487 (1933)(ln

exercising rule making power, district court could not re

strict or enlarge rules made under predecessor to 28 USCS

2072) .

•

'Sp

However no court rule cor Id restrict a issue in re

gards to jurisdiction. See Unitejd States v. National City Bank

83 F.2d 236 (2d Cir.) Cert denied, 299 U.S. 563, 57 S.Ct.

25, 81 L.Ed. 414 (l936)(No court rule could restrict jur

isdiction). It is clear statute of limitations is a juris

dictional issue and Lewis being under a 5 year statute of

limitations due to the time of repose can not only raise

the issue in timely motion for acquittal but any other

time. See United States v. Gentile, 235 F. Supp. 3d 649

(D.N.J. 2017)(This section's six-year statute of limita

tions was inapplicable to security fraud crimes defendant

allegedly committed before its enactment because when he

allegedly committed his crimes

he had a statutory right

to be protected from criminal prosecution five years from

date he committed said acts, anc this section contains no

discussion nor mention of retroactivity).

Any law of the United States which must be in pur

suance with the Constitution is the Supreme Law of the

Land which applies to Statute of Limitations before DoddFrank Act as well as after. See Art. 6, Cl.12. U.S.Const;

New York v. FCC

486, U.S. 57, (1988)(Phrase "Laws of the

United States" emcompasses both federal statutes themselves

and federal regulations that are properly adopted in accor

dance with statutory authorization). With the statute in

place at the time of repose beirg the five year time limi<* >

tation statute the Court lacked subject-matter jurisdiction

which is to be liberally interpreted in favor of repose.

See Toussie v. United States

3C 7 U.S. 112 (1970)(While

every statute of limitations ma> permit a rouge of escape,

when a court concludes that the statute does bar a given

prosecution, it must give effect to the clear expression

of congressional will that in sich case "no person shall .

be prosecuted, tried, or punishe d").

Lewis properly seeking tc recall the mandate in

order to prevent such injustice to continue filed such

motion in the Fifth Circuit Court in accordance with Fifth

Cir.R.41.2. The Fifth Circuit ir its blanket response re

fuses to recall the mandate to prevent injustice abridging

a substantive right. See Fifth Qircuit Rule 41.2; See Marbury v. Madison, 2 LED 60, 1 Crunch 147 (1803)(There are

some injuries which can only be redressed by a writ of man

damus, and others by a writ of prohibition. There must then,

be a jurisdiction somewhere competent to issue that kind of

process). Lewis having no other place to seek relies to pre

vent injustice hereby seeks the feupreme Court which is the

only party able to compel performance of the Fifth Circuit.

See Marbury v. Madison, 2 LED 60, 1 Cranch 147 (1803)(Blackstone, vol. 3, p.110, says that a writ of mandamus is "a

command issuing in the King's name from the court of King's

bench, and directed to any person, corporation or inferior

court requiring them to do some particular thing therein

specified, which appertains to their office and duty, and

which the court has previously determined, or at least sup

poses, to be consonant to right and justice. It is a writ

of most extensively remedial nature, and issues in all cases

where the party has a right to have anything done, and has

no other specific means of compelling performance").

REASON FOR GRANTIN'! PETITION. . .

The reason for granting this case is due to the Fed

eral Courts being of limited jurisdiction. Such jurisdiction

is authorized by "statute" and tie "Constitution". See Kok-

kenen v. Guardians Life,Ins. Co. of America, 511 U.S. 375

(1994)("Federal Courts are Courts of limited jurisdiction.

They possess only power authorized by Constitution and Statute

which is not to be expanded by judicial degree. It is

to be presumed that a cause lies outside the limited juris

diction and the burden of establishing the contrary rests

upon the party asserting jurisdiction").

Thus "Statute of Limitations" is in fact a issue of

jurisdiction which has a "Statute" specifically disclosing

such jurisdiction a Federal Court has in prosecuting a case

regarding Secuities Fraud. See 18 U.S.C. § 3301. However due

to the actions of Lewis taking place before the Dodd-Frank

Act which was enacted July 21

2010 the previous statute of

^ •

limitations are to be applied due to no retroactivity. See

United States v, Gentile, 235 F.Supp. 3d 649 (D.N.J. 2017)

(Absent clear legislative intent to apply a.criminal statute

of limitations retroactively, the court will refrain from

doing so).

Clear evidence which was brought by the government

questioning the witness was made to disclose when the repose

of the actions took place. See EXHIBIT A, Vol.lb, p.57-58.This Court being well aware that criminal limitation sta

tutes are interpreted by repose. See Toussie v. United States

397 U.S. 112 (1970)(Criminal limitation statutes are to be

liberally interpreted in favor of repose). It is clear that

a bar to prosection

. exist , that can: (1) be addressed in a

"'tyial motion" which is a motion for acquittal timely filed.

See Fed.R.Crlm.P.R.29(c)(1); See United States v. Joneg

174

F.2d 746 (7th Cir. 1949)(Proper motion to raise question of

sufficiency of evidence is motion for judgment of acquittal);

(2) be appealed due to such being a issue that was brought

into question at trial and a motion for acquittal filed construes with such. United States v. McCall

553 F.3d 821 (5th

Cir. 2008)(Because general language about insufficiency of

all of evidence for all elements of all counts was used to

•introduce

and conclude defendant's motion for acquittal, is

sue was preserved since Fed.R.Crim.P.29 motions did not have

to be specific) and; (3) be brought up at anytime due to such

being a issue of jurisdiction. See 18 U.S.C. 3301; See Tousi

sie v. United States, 397. U.S. 112

V.Berry

5 T

*1970); See also William

8 HOW. 945, 940 12 L.Ed. 1170, 1189 (1850)(Courts

are constituted by authority and they cannot go beyond that

power delegated to them. If they act beyond that authority,

and certainly in contravention of it, their judgments and

orders are regarded as nullities; they are not avoidable, but

simply void, and this even prior to reversal).

•Thus recall of mandate which is used to prevent in

justice. See Fifth Cir.R.41.2 (once issued'a mandate will not

be recalled except to prevent injustice). Is in the interest

of Lewis who meets the standard for reversal due to the sta

tute of limitations clearly being in his interests when

the Court of Appeals deemed otherwise and the district court

following the standard of the Court of Appeals. See In re In

cident aboard D/B Ocean King, 877 F.2d 322, 14 fed. R. Serv.

3d (Callaghan) 266 (CA5 La. 1989)(Mandate would be recalled

and reformed where'court itself had brought about potential

injustice by failing to give instructions regarding allowance

of interest).

The integrity of the judicial process is clearly at

stake due to a "Statute of Limitations" holding the force of

the Supreme Law of the Land by being a law of the United States.

See Caldwell v. Alabama Dry Dock & Shipping Co.

161 F.2d 83,

(5th Cir. 1947)(Valid federal laws are part of supreme law of

* >

land, and state may not discriminate against rights by or ax•

‘i*

•

ising under such laws.); See also New York v. FCC, 486 U.S.

57 (1988)(Phrase "Laws of the United States" encompasses both

federal statutes themselves and federal regulations that are

properly adopted in accordance with statutory authorization).

The Fifth Circuit creating a rule that discloses that

Statute of Limitations defense is merely a affirmative defense

that can only be asserted in trial and not post-conviction

motion for judgment of acquittal. See United States v. Lewis,

774 F.3d 837 (5th Cir. 2014)(Statute of Limitations defense

. - could not be asserted for the first time in post-conviction

motion for judgment of acquittal; statute of limitations de

fense was affirmative defense that had to be affirmatively

asserted at trial to preserve it for appeal). Such creates

a complete abuse of the "trial motion" which is known as

motion for acquittal which was properly filed less than 14

days after jury verdict as disclosed by the Fed.P.Crim.P.

See Fed.R.Crim.P.29(c)(l); See Page 8 of Docket Text for

Case #3:12-cr-159-D-l; See United States v. Davis, 538 F.2d

190 (5th Cir. 1978)(one of salutary purposes of motion for

judgment of acquittal is to give court oppurtunity to cor

rect error immediately). The integrity of the Court ..'

would be further in deprivation of allowing such to happen

to other citizens of the United States when clearly this

Court created the criminal procedure in order to enforce

acquittal. See 28 U.S.C. 2072(a); See Johansen v. E.I. Du

Pont de Nemours & Co., 627 F.Supp. 968 (5th Cir. 1987HOnlv

•

where there is direct collision between federal rule and

state law is court required to determine whether federal

rule is within scope of 28 USCS" 2071).

However, despite the record reflecting the issue was

addressed at trial regarding Statute of Limitations and a

timely motion for acquittal being submitted. If the Court

allows such an issue to become merely affirmative defense

instead of a jurisdiction issue any case will be able to be

trespassed upon regarding Statute of Limitations when no

party should be held to be tried

or punished regarding Sta

tute of Limitations which is the point of Statute of Limita-

tions creation and enforcement. See United States v, Toussie,

397 U.S. 112 (1970)(While every statute of limitations may

permit a rouge to escape

when a court concludes that the sta-

tute does bar a given prosecution, it must give effect to the

clear expression of congressional will that in such case "no

person shall be prosecuted, tried, or punished").

Lewis also respectfully submits to this Court that due

process provides that the "rights of pro se (Sui Juris) liti

gants are to be construed liberally and held to less string

ent standard than formal pleadings drafted by lawyers; if

court can reasonably read pleadings to state valid claim on

which litigant could prevail, it should do so despite failure

to cite proper legal authority, confusion of legal theories,

•

% *

•

poor syntax and sentence construction, or litigants unfamil

iarity with pleading requirements" Spencer v. Doe, 1998; Gr

een v. Bransou, 1997; Boag v. McDougall

ner

1998; Haines v, Ker-

1972. "Right to proceed to pro se (Sui Juris) is funda

mental statutory right that is afforded highest degree of pro

tection" DEVINE V. INDIAN RIVER COUNTY SCHOOL RD.

11th CIR.

1997.

Finally, review in this Court has long held the posi

tion that [its] nature of review by means of a writ is not a

matter of right, but of judicial discretion. The primary con

cern of the Supreme Court is not to correct errors in lower

court decisions, ‘but to- decide cases presenting -issues of

importance beyond the. particular facts:and parties involved.

An important consideration in accepting Lewis's case

for review include the existence of a conflict between the de

cision of which review is sought and a decision of another ap

pellate court on the same issue. An important function of the

Supreme Court.is to resolve disagreements among lower courts

:about

specific legal questions. Another consideration is the

importance to the public of the issue. Lewis believes [his]

issues fit squarely within this Courts natut.e of review not

particular facts and parties involved and protects public li

berty interests and encourages community confidence in crimi•

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nal law by giving "concrete substance" to the presumption of

innocence.

CONCLUSION

In accordance with Lewis meeting the affirmative de

fense burden set by Arky and Cook, supra, as well as having

a right by lack of subject-matter jurisdiction set by statute

prior to Dodd-Frank Act. Lewis request that this Court compell the performance of the Fifth Circuit Court to recall

the mandate so as to prevent injustice.

Date: & /? -

Respectfully submitted,

DAVlitjCEVIN LEWIS

Inmate Number 34305-077

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Fed. Correction Insti. El Reno

P0~Box 150TT

El Reno, Oklahoma 73036

PRO SE LITIGANT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.